Katac and Naylor

[2012] FMCAfam 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KATAC & NAYLOR [2012] FMCAfam 426

FAMILY LAW – Parenting – neglect – relocation – recovery order – young child supervising younger sibling – failure by family consultant to disclose information provided by children and parties in child inclusive s.11f counselling.

Family Law Act 1975 ss. 60B, 60CA, 60CC, 60CG, 61B, 61C, 61DA, 64B, 65DAA

Starr & Duggan [2009] FamCAFC 115
Taylor & Barker (2007) FLC 93-345
Goode & Goode (2006) FLC 39‑286

Applicant: MS KATAC

Respondent: MR NAYLOR

File Number: NCC 263 of 2012

Judgment of: Myers FM

Hearing date: 2 April 2012

Date of Last Submission: 2 April 2012

Delivered at: Newcastle

Delivered on: 3 April 2012

REPRESENTATION

Solicitors for the Applicant: Mr R Haricharan

Respondent in person: Mr Naylor

ORDERS

1. The children Y born (omitted) 1999 and Z born (omitted) 2002 live with the father.

2. The children spend time with the mother supervised by the maternal grandmother as follows:

(i)for one week of each of the three during the school year Western Australian gazetted school holiday periods; and

(ii)for a period of four weeks of the Western Australian gazetted Christmas school holidays being the first four weeks in even numbered years and the last four weeks in odd numbered years.

1. The parties have liberty to have telephone communication with the children at such times as agreed between the parties and failing agreement that the mother have telephone communication with the children each Monday, Wednesday and Friday night between 7.00pm and 7.30pm Western Australian time.

2. The parties equally pay the costs of the children’s air flights between Perth and Sydney return.

3. The children shall spend time with the mother supervised by the maternal grandmother commencing today 3 April 2012 at 9.00pm with the mother and the maternal grandmother collecting the children from (omitted) Hospital outside the ward in which the maternal grandfather is currently being treated until Saturday 21 April 2012 with the mother and the maternal grandmother to then deliver the children to the Kingsford Smith airport in Sydney for the purposes of the children catching a flight to return to Perth on a flight at a time to be agreed between the parties.

4. Each party must ensure that the other party is kept informed as soon as is reasonably practicable of:

   a.any medical condition or serious illness suffered by the children

   b.any medication that has been prescribed for the children

   c.any matter of relevance to the welfare of the children to their health.

5. The father do all acts and things necessary so as to authorise and direct the children’s school to provide copies of all school reports and any other notices to be forwarded to the parents to the mother.

6. Without admissions the mother and father be restrained from consuming any illicit substances or alcohol to excess whilst the children are in the parties respective care.

7. The father is restrained from allowing or encouraging the children to refer to Ms L as mum or mother.

8. If practicable noting the father resides in Western Australia the parties enrol in and thereafter complete the Keeping Contact Program run by Unifam Australia.

9. Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children Y born (omitted) 1999 and Z born (omitted) 2002 and the Legal Aid Commission of New South Wales is requested to provide such representation.  The parties are to provide to the Legal Aid Commission at (omitted), forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

10. The matter is adjourned to 20 July 2012 at 09.30 am for a directions hearing.

IT IS NOTED that publication of this judgment under the pseudonym Katac & Naylor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT NEWCASTLE

NCC 263 of 2012

MS KATAC

Applicant

And

MR NAYLOR

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application in which the mother has commenced proceedings seeking the return of two children of the relationship, Z, now aged 10 years and Y, now aged 12 years.  The mother was born on (omitted) 1977 and the father was born on (omitted) 1979. 

2. The parties commenced cohabitation in or about 1996 and married in New Zealand on (omitted) 1999.  It appears to be agreed that the parties separated in or about February 2005. Following the separation, the children have lived in the predominant care of the mother and, indeed, she has been the primary carer.  It is apparent that some time between late 2008 and early 2009, the father relocated from the Central Coast of New South Wales to live in Perth.

3. It is agreed between the parties, on the facts as contended for by both parties, that from on or before late 2009, the children spent time with the father twice per year in block periods of two to three weeks.  It is further agreed that on or about 15 December 2011, the children left to spend time with their father in Perth.  The mother contends, and there seems no disagreement, on behalf of the father, that the children were to be returned to the mother’s care by 25 January 2012.

4. Having read the documents, it is apparent that on or about 19 January 2012, at the father’s request, the police service in Western Australia, made application for and were successful in obtaining a violence restraining order for the protection of the children against the mother in a Magistrates’ Court in Perth.

5. It is the mother’s evidence that she appeared at Court in the Magistrates’ Court in Perth on or about 29 January 2012 and was successful in having the application against her dismissed in circumstances where the father failed to appear at Court for the purposes of prosecuting and giving evidence in relation to the application.

6. The father gave reasons, during the course of the interim hearing in this matter, that he was unable to attend the Court in Perth as he had made arrangements to attend this Court for the purposes of being interviewed with the children by a family consultant on or about 30 March 2012.  Following the father failing to return the children to the mother, the mother commenced proceedings before this Court.

7. The mother relies on the following documents, which I have read and considered. An initiating application filed in this Court on 6 February 2012, in which the mother seeks leave to move on an application for recovery on a ex parte basis. In the alternative that the applicant be granted leave for short service of the application, that pursuant to section 67Q of the Family Law Act, in the terms of a draft recovery order attached to the application, a recovery order be issued for the return of the children, Y, born (omitted) 1999 and Z, born on (omitted) 2002. Further, that the father be restrained from taking or sending or attempting to take the children outside of Australia. That the marshal of the Federal Magistrates Court of Australia engage the Australian Federal Police and the police forces of States and Territories, to authorise and to give effect to the orders. And further other procedural orders including and in addition placing the children on the Airport Watch List.

8. The mother caused to be filed with her initiating application, an affidavit sworn by her on 6 February 2012.  In that affidavit she deposes that during the course of the relationship the father and her resided both in Australia and New Zealand and that they permanently relocated to Australia in about 2001 and between 2001 to 2004 the parties resided on the Central Coast of New South Wales.  In 2004, the parties relocated to Queensland but that since the date of the birth of the two children, up until separation, and then following separation until 29 January 2012, she was the primary carer for the children.

9. At paragraphs 16 to 40 of the mother’s affidavit, she deposes to a history of domestic violence known as family violence in this Court, in which the mother alleges that the father would hit her, scream at her, leave bruises on her, would call her names such as a slut, that she was punched and made unconscious;  that there was an altercation at the (omitted) Hotel on the Gold Coast in about 2004 and what the mother describes as abuse, occurred in the presence and hearing of the children on approximately 40 per cent of occasions;  that the father had a history of elicit substance use and clearly taking ecstasy, the methamphetamine ice, cocaine, amphetamine, speed and marijuana. In paragraph 34 the mother deposes that the respondent used such substances regularly and heavily during approximately 70 per cent of the period of their relationship. 

10. The mother deposes that the respondent spent approximately somewhere between $100 a week on alcohol, a $100 on speed, and $50 a week on marijuana.  In interim hearings I am not in a position to make any findings as to the veracity or accuracy or truth of matters relating to family violence or alternatively matters relating to the father’s drug use in circumstances where the allegations are denied by the father.

11. The mother deposes that following separation she relocated to Property A,.  She was unsure where the respondent was living at that time but that he was somewhere in New South Wales.  She then moved to a new property where the children resided with her at Property R,.

12. The mother deposes that she has had the stable physical, emotional, financial and educational care for the children without any assistance from the respondent since on or about February 2005.  That she has always observed that the children desire a relationship with the father and that she has encouraged that relationship with the father.

13. The mother deposes that on or about late 2009, the father telephoned her, had a conversation with her in which words were said to the effect, by the father, “Would it be all right if I flew over to come and see the kids?” to which the mother responded, “I would like for you to see the children with some consistency.  You need to make frequent contact and keep your promises to spend time with them.  They get excited about seeing you and then disappointed if you don’t show up or call.  It’s not good for them.”  The mother deposes the father responded saying the words “Okay”.  The mother stated, “If you can do that, then its okay for you to have them for the holidays as long as you pay the return tickets.”  The mother’s evidence is that following that conversation, the father flew from Perth and spent time with the children for two weeks together with the paternal family in Queensland. 

14. The mother then deposes to events that took place between December 2011 and February 2012 which I have read and considered.  The mother then deposes that there was an agreement whereby the children visited Western Australia to spend time with their father.

15. The mother provides evidence as to the circumstances in which the father then failed to return the children and annexes to the affidavit, copies of various text messages, which I have read and considered.

16. The mother annexes to her affidavit a copy of an application for a violence restraining order listing the father as the Applicant.  The mother says that she has never physically disciplined the children;  that, “I have never emotionally, physically, sexually or psychologically abused the children”;  that she could not recall an incident occurring that would lead to the making of a violence restraining order against her for the protection of the children;  that she was concerned for the children in their father’s care;  that she had not spoken to the children since on or about 20 January 2012 nor seen the children since 15 December 2011.

17. The mother deposes that she does not leave the children at home alone for long periods of time;  that she has never performed oral sex in front of the children;  never slapped or punched the children on their “face of bodies”, which I take to mean face or bodies;  that, “I’ve never left the children alone to travel to (omitted) for the weekend”;  that she has never hit Z’s head with a brick wall;  that she has never been in a fist fight with the parents of Z’s friends;  that she has never observed the children to be scared of her.

18. The mother deposes as to the father’s current circumstances in that he is living at Property B, Western Australia.  The mother states that it is her belief the father is still abusing alcohol and that on several occasions she spoke to the father on the telephone she heard his speech slurred;  that the father’s current partner is her cousin, Ms L.  Ms L has three children from a previous relationship that reside with her and the father at their home at Property B and that the mother is very concerned the father may attempt to flee to New Zealand with the children and that the father is a New Zealand national and currently in possession of the children’s passports.  The mother set out that it was her belief the father did not have the capacity to properly parent the children over a long period of time.

19. At paragraph 99 of the mother’s affidavit she states she is living in a three-bedroom rental home in (omitted) together with the children and her partner, Mr C.

20. During the course of the proceedings the mother accepted or admitted that in fact that relationship with Mr C had ended and that she was now residing in the home in (omitted) on her own with the children for some indeterminate period.

21. The mother deposes that she is an (occupation omitted) for (omitted), a company with which she has been employed for approximately six years; that she has a routine at home in which she says, “I send them to school, prepare home cooked meals and arrange the children’s extra curricular activities.  I am able to provide for the children’s physical, emotional, psychological, and educational needs”; that she is concerned that the children are not currently attending school.  She asks the Court to return the children.

22. On 27 March 2012, the mother caused to be filed in this Court a further affidavit sworn by her on 26 March 2012.  That affidavit again sets out that she is the applicant in the proceedings.  She notes a letter of commendation from (omitted) College dated 17 February that reflects her son Y’s attendance at a school in Western Australia for a period of less than 14 days and that the (omitted) High School year 7 final reports at 2011 reflect efforts in performance of a satisfactory achievement; that she has observed the transition of Y from primary to high school and observed that he is trying to fit in with his peers and mates.

23. The mother deposes that Y and Z have had head lice on at least two occasions, each in the month during 2011 and that she has treated both of the children’s hair on a regular basis for nits throughout their schooling;  that on each occasion when the children travel to spend time with their father she observes their luggage includes all necessary clothing, personal toiletries sufficient for a 14-day stay.

24. The mother gives some evidence as to child support received by her from the father;  further, that her biological mother, Ms T, separated from her father in 1979 when she was three years old;  that her father has been in a relationship with a person known as Ms D since she was approximately four years old;  her relationship with Ms D was not close and as she grew up her relationship with Ms D became strained;  that she has never had confidence in Ms D.  However, after her children were born she encouraged the relationship between the children and Ms D.

25. The mother deposes that her relationship with Ms D ended about two years ago when she stopped the children having contact with her in circumstances where Z would say words to the following effect after seeing Ms D, “Granny says you are a bad mum.”  I take “granny” to mean Ms D.

26. The mother refers to the signed document which is attached to the father’s affidavit being a letter signed by Ms D and states that the accusations are without substance or foundation but are actuated by malice.

27. The mother denies that she drinks excessively, fails to provide the children with regular meals and leaves the children without appropriate care.  She says that she provided for the physical, emotional and psychological care of the children since the father was separated;  that she does not drink from Monday to Friday and she would only usually drink on weekends and that she may drink about half a bottle of wine with dinner but there were a few occasions when she drank more than half a bottle of wine and would have been slightly inebriated.

28. As to the time the mother says she has had communication with the children she says that she has spoken to the children on two occasions only and on each occasion she came to the conclusion that she was on speaker phone.

29. The mother files a further affidavit on 30 March 2012, sworn on that day in which she gives evidence and deposes to the date of the hearing before this Court and also as to the date of the hearing in the Court in Western Australia on 29 March 2012.

30. It is the mother’s evidence that the father was well aware of the hearing to take place with respect to the violence order in Western Australia on 29 March 2012 and I accept that the father was aware of the date of the violence hearing or the domestic violence order hearing within Western Australia.  The mother annexes to her affidavits a letter of Ms B.  The letter can be best described as a reference in which Ms B states that she has observed the mother for a period of four years and is praising of the mother’s care of the children. 

31. There is a further letter of support annexed to the mother’s affidavit, which is annexure C, prepared by Ms C, in which Ms C deposes she has known the mother for more than five years, that she has found her to be a responsible, caring, kind and loving mother, and that her daughter is good friends with Z since kindergarten.  They have spent the weekend on more than occasion at the mother’s home.  There is a further letter signed by ,Ms R address withheld, dated 26 March 2012, which forms annexure D to the mother’s affidavit, in which Ms R. sets out that she has known the mother for the past six years and observed that both the children are happy and content, always dressed well and clean, that there is plenty of food in the fridge.

32. Ms R. sets out in her letter that she has found Ms D to be underhanded towards the mother and spiteful with comments.  It is Ms R.’s position that she believes the best place for the children is with the mother back in New South Wales where there is unlimited amount of family close to assist with the children.  On 2 April 2012, the mother caused to be filed in this court a further affidavit sworn 2 April 2012.  Again, the mother deposes she is the applicant in the proceedings.  The mother deposes in that affidavit that between the period of 2007 to 2009 she had a nanny who took care of the children until the children and her moved to a house which was within 10 minutes walking distance from the school.

33. In late 2009 the mother states she discontinued the services of the nanny as she believed that “the children would be able to walk to school and care for themselves until I returned home”.  The mother states that she would leave home at 6.30 am.  I note that Y is now 12 years of age and that he would have been approximately nine years of age in 2009 and that Z would have been approximately six years of age in 2009 at the time the children were left by the mother at home at 6.30 am in the morning.  This is an issue that causes me considerable concern.  The mother deposes that when she would leave at 6.30 am she would have prepared lunches for both of the children and had taken out the breakfast cereal.  The children would have their breakfast and walk to school, and she would also prepare snacks for the children to have in the afternoon when they returned to school.

1. Nevertheless, the issue of the children being left in the morning on their own since, what the mother says, is 6.30 am, in circumstances where the children were some three years younger than they are now in 2009 causes me some concern.  The mother deposes in an affidavit for the first time on 2 April 2012, that on or about 20 March 2012 she was very stressed after receiving an email from her legal representative.  The email contained an affidavit, which I take to be the letter, signed in front of a JP by Ms D.

2. The mother deposes, after reading the contents of the affidavit, she was extremely upset and emotional;  she did not sleep on Wednesday and Thursday and Friday;  that on 24 March at approximately at 10 am she telephoned her father, Mr Katac, to seek support and she was extremely tired and upset.  Then she had a conversation with her father to the following effect, “Dad, are you aware your wife has submitted an affidavit supporting Mr Naylor?”  The mother’s father, Mr Katac, responded, “No, I didn’t know but don’t worry about it.  Just let the children make their own decision as to where they want to live.  You should have dealt with this out of court.”  The mother deposes she said, “How could I?  There is a restraining order in place.”  The father states, “I’ll be at court on Friday.” 

3. The mother deposes that after speaking with her father she showered and dressed and walked to (omitted) from her home.  Whilst at (omitted) she had a lunch in a café.  She ordered a steak, salad and chips, purchased a bottle of wine from a bottle shop prior to ordering her lunch; that she consumed her lunch and drank approximately two glasses of wine.  She walked back home with a friend.  On the way home she purchased a bottle of white wine from a bottle shop then she observed her friend open the bottle of wine and pour two glasses.  She was sending a text message to her mother and she recalled she’d only drunk approximately three mouthfuls of wine.

4. She recalls she had four sleeping tablets as she wanted to sleep.  She recalls falling off to sleep and then waking up in (omitted) Hospital at approximately 1.30 am.  The mother denies, in her affidavit, that she was suicidal; that she had made a mistake and advised a psychiatrist at the hospital of the fact after she was questioned as to whether she was suicidal.  The mother deposes that she left (omitted) Hospital at approximately 2 am with her mother and her mother’s husband, Mr A, and Mr A drove her to her mother’s home in Sydney.  The mother deposes she had never intended to harm herself.  She only wanted to have a restful sleep.  She now realises she should not have taken alcohol and sleeping tablets.

5. The mother now deposes, for the first time in her affidavit, that she is very stressed – and when I say first time, having filed three other affidavits in the proceedings – she now provides information to the court in her affidavit that she became very stressed needing counselling with clinical psychologist, Dr T, at (omitted) Clinic at (omitted), and had three sessions of counselling with him, and that she will undertake counselling “as long as the psychiatrist and I think I need counselling”.  I note the mother refers to a psychiatrist that is not named.  The mother deposes that if the children are returned to her care she will resign from work.  She has already spoken to her employer about resigning and seeking alternative employment which would allow her more flexible working hours, and that she has an appointment to see her manager on 3 April at 9 am.

6. However, if her employer cannot accommodate a transfer closer to home, she will resign; that she is currently earning a salary of approximately $65,000 per annum but prepared to resign.  Her current work hours require her to leave at 6.30 am and return home at 5.30 pm.  She is of the view the children are not being neglected and she is concerned the Court may find that leaving the children unattended for possibly one and a half hours in the morning and one and a half hours in the afternoon may amount to neglect.  The mother says she does not usually physically discipline the children but “on occasion I’ve given the children a slap across the arm if they did not listen to me”. 

7. The mother sets out, “I recall the occasion when I hit Y across the arm when I repeatedly requested him not to call his sister “fatty”, “whale” or “house”.  I note in the mother’s earlier affidavit that she denied ever physically disciplining the children.  In support of the mother’s application, she caused to be filed an affidavit of ,Ms T who is her mother and the maternal grandmother in the proceedings.  Ms T deposes as to the history of the relationship; deposes that the mother had indicated to her that the father had drank a lot, that the father does Ice and Ecstasy; that the mother had advised her of some fights she had had with the father; that the mother had told her that Ms L was deemed an unfit mother because she was in a drug fuelled relationship with the father and Ms L’s children were previously removed from her care for approximately three weeks.

8. The maternal grandmother deposes that on or around 24 March 2012, “I telephoned Ms Katac” – being the mother – “and had a conversation with her.”  The maternal grandmother raised concerns that the mother’s speech was slurred, “she seemed distant and incoherent” and thereafter rang the mother’s father, Mr Katac, advising him that the mother sounded unwell;  that she was at some markets and ask that he go to the mother’s home to check on her, to which the maternal grandfather, Mr Katac, indicated that he had been drinking but he would see if he could get somebody down there.  The maternal grandmother then deposes she had hung up the telephone and called an ambulance to go and check on her daughter.

9. The maternal grandmother deposes that the mother was admitted to (omitted) Hospital, that she went to visit the mother in hospital and the mother said to her, words to the effect, “I’ve been crying for three days and wanted to stop crying and that’s why I took the Valium.  I haven’t slept for three days.  I just wanted a rest.  I just want to see my babies.  Mr Naylor won’t even let me talk to them.”  The maternal grandmother deposes she is a semi-retired business owner.  She currently works approximately eight hours or less per week; that she has a close and loving relationship with the children.  She supports her daughter’s application to have the children returned.

10. The maternal grandmother identifies as a Maori woman and family values are deeply entrenched in the Maori culture, and it is culturally appropriate for Maori family members to assist other family members in time of need.  The mother calls to be filed in the proceedings a case outline.  I’ve read and considered the mother’s case outline document.  It provides a history of the relationship.  In that document, the mother proposes the following interim orders:

    1.that the children live with the mother; 

    2.that the mother have sole parental responsibility of the children; 

    3.that the children spend time with the father for a period of 10 days in the New South Wales holidays in July as agreed between the parties, for a period of two weeks in the New South Wales holidays in December as agreed between the parties and, failing agreement, from 5 January until 19 January; 

    4.that the father pay all the costs of the children’s return flights to and from Perth at least 28 days prior to the children’s proposed departure; 

    5.that each party be at liberty to communicate with the children by telephone at any reasonable time that the children are in the care of the other party.

    6.Each party is to ensure that the other party is kept informed as soon as is reasonably practicable of any medical condition or serious illness suffered by the children, any medical condition that has been prescribed – any medication prescribed for the children, any other matter relevant to the welfare of the children;

    7.that the mother authorise and direct the children’s school to provide copies of the reports to the father; 

    8.that the father be restrained from consuming any illicit substances or alcohol while the children are in his care; 

    9.that the respondent father and his servants and agents are restrained from taking or sending or attempting to take or send the children outside of Australia; 

    10.that the marshal and all officers of the Australian Federal Police authorise a request that give effect to the orders.

    11.The father is restrained from allowing or encouraging the children to refer to Ms L as mum; 

    12.the children attend counselling with the mother’s current treating psychologist; 

    13.Within seven days from the date of the orders the parents each enrol in and complete a parenting after separation course offered by Relationships Australia or Interrelate. 

11. Written submissions are set out in the mother’s case outline document looking at those matters set out at section 60CC(2)(a) and (b), section 60CC(3) and (4), and the presumption in favour of equal shared parental responsibility at section 61DA. A list of authorities are then cited in the matter. I have read and considered the mother’s case outline.

12. The mother further relies upon an affidavit of Ms Haricharan, an employee in the firm Hunter Family Law Centre.  Ms Haricharan deposes she is a legal assistant.  In the course of her duties she takes messages on behalf of Mr Haricharan, the mother’s solicitor.  She is familiar with the file of the mother.  She carries out administrative work in relation to the file and that she attaches a copy of simultaneous file note, dictated to her by the mother’s solicitor after a phone call.

13. I have read and considered the contents of the note of the mother’s solicitor.  The mother also caused to be filed a non-filing of family dispute resolution certificate that allowed the Court to file the proceedings in circumstances where the mother had not filed a section 60I certificate. 

    RECORDED  :  NOT TRANSCRIBED

14. The father relies on the following documents which I have read and considered.  A response filed in this Court on 20 February 2012.  The father seeks orders within that document on an interim basis:

    1.That the mother’s orders for recovery be dismissed.

    2.The children remain in Perth with the father.

    3.That the matter be transferred to a court near the children in Western Australia. 

15. In support of the orders sought by the father he relies upon an affidavit filed in this Court on 20 February 2012, sworn on 18 February 2012.  In the affidavit the father says he is the respondent in the proceedings.  He is 33 years of age.  The mother is in good health although he suspects he continues to drink alcohol to excess and misuse illicit prescription drugs.  The father deposes that both he and the mother are of Maori descent.  He was born in New Zealand and the mother was originally from Perth.

16. The father deposes that from birth he has built and maintained a lasting relationship with the children.  And as a result the children and he have remained close.  The children trust and respect him.  That he is in a current relationship with his partner, Ms L, and he has been in that relationship for approximately six years.  They began to live together about five years ago.  Ms L has three children from a previous relationship, namely, C aged 12, I aged eight, and A aged seven years.  All of the children relocated to Perth from Queensland by way of final Court orders in March of 2011.  And he has played a role as their father since, providing for their needs.  They respond to him as dad.

17. The father deposes that he shares with his partner, Ms L, a three-bedroom home with all modern amenities and a large fenced yard.  The children maintain good relationships with one another, the father and any other neighbours.  They live in a friendly neighbourhood.

18. The father deposes that throughout the course of the relationship the mother was verbally abusive towards him frequently, and also during any attempts the father made for visitation with the children; that despite the family violence and hostility towards him he had hoped things would get better; that he has never hurt the children or the applicant mother. 

19. The father deposes at times the mother felt necessary without provocation – she would attack him often resulting in his nose being broken, black eyes, scratches to the face or neck and a broken bottle over his head.  In words, he says, just to name a few.  These occasions occurred in the presence of friends, other members of the family.  The children were also present at times.  And that he has never been violent, struck or punched the mother. 

20. The father deposes that throughout the period of their relationship the mother drank alcohol to excess on a daily basis; that the mother also took illicit drugs, and according to a former friend of the mother, the mother is also self-medicated with Valium prescription drugs and may have a serious mental health issue.  It is the father’s evidence that the relationship between the mother’s former friend ended due to the friend’s fears of the mother’s behaviour after being attacked and burnt on a stove hot plate and that this occurred in the presence of the children. 

21. The father deposes that over the years the mother has made it difficult, if not impossible, for him to maintain contact with the children.  He has often found it impossible to discuss matters regarding the children with her or make arrangements to do so as she often becomes angry and erratic.  The father deposes that during the children’s stay in Perth they raised with him the following concerns for abuse and neglect at the hands of the applicant mother;  that Y was punched in the arms and body by the mother;  threats of violence over petty irritations were made by the mother;  both the children were left from approximately 6 am until 6.30 pm weekdays;  the children were left alone for long periods of time regularly overnight;  the mother used verbal abuse to the children and friends of the children;  the children were left alone when the mother visited her current partner in (omitted), Queensland;  that Y had an injury requiring stitches during football while the mother was away in (omitted) for the weekend;  the children were driven whilst – it states driven while intoxicated frequently with the children in the car – in the vehicle;  the mother had been so intoxicated while driving that she pulled over onto the roadside for a sleep with Y in the vehicle for a long period of time;  that the mother has had fist fights and altercations with the children’s friends, parents in view of the children with the children’s attempts to intervene;  the mother has had altercations and fist fights with most family members from maternal grandparents to aunts, uncles and extended family;  that there are no sufficient lunches provided for school for the children, often leaving a situation where other children would share their lunches with Y and Z;  that the children are left in the supervision of unfamiliar or incapable carers.

22. The father deposes that the children are left at friends’ places for up two weeks at a time with no communication with the children;  the children are both slapped across their faces as regular discipline;  they are hit with objects such as wooden spoons;  Z’s hair was pulled and her face forced into a brick wall.  One of the most serious of the allegations is that the mother performed oral sex to her previous partner in view of the child, Y; and the children continually had head lice with no treatment from the mother.

23. The father deposes that after the information was provided to him he acted accordingly to protect their welfare.  And it was the allegations of abuse that led to the father keeping the children with him and in Perth at the last minute.  It is the father’s understanding that the children –have a loving relationship with their grandmother, Ms D.  It is the father’s understanding that they are banned from seeing her and that she had previously been a safe haven for the children along with her husband, Mr Katac, the mother’s father. 

24. The father alleges that Y has related that the mother has attempted to brain wash him to believe that the father did not care for or love him.  Y has brought this up several times during his stay with the father.  The father deposes that the children have extracurricular activities pertaining to their culture, spirituality, fitness in their father’s home; that there is fun and education.  The father deposes that neither he nor his partner take any mind altering substances or drink.  They have both recently given up cigarettes in the last year to maintain a healthy lifestyle. 

25. The father deposes that he has consistently paid child support over the years since separation and that at the end of last year he was in credit to the Child Support Agency.  The father deposes the children are currently in good health; that upon arriving to Western Australia, Z fell ill suffering from tonsillitis and she recalled several times as having this pain and not once being treated for it whilst in the applicant mother’s care.  The father deposes that he has known that the children have suffered from head lice quite badly and appeared neglected.  The father annexes a copy of Y’s school report from Y’s high school which is annexure A.  And he notes there have been many absentee days. 

26. I have read and considered the Y’s year 7 final report for the year 2011.  Y has had 21 whole day absences, 12 unexplained and seven partial absences.  The father’s evidence is that Y is progressing well in his new school and he has rapidly increased his progress.  Annexed to the father’s affidavit at annexure 4 is a letter of commendation prepared by (omitted) College dated 17 February 2012 for the period in which it appears Y has attended that school. 

27. The father further caused to be filed an affidavit sworn by him on 7 March 2012.  That affidavit annexes to it a copy of a handwritten letter prepared by Ms D whose date of birth is (omitted) and note that that affidavit was read in the proceedings without objection by the mother’s solicitor.  I do not propose to go into the matters in that letter in enormous detail at this stage of the judgment but I can say that I have read and considered there are other matters contained within it and I am enormously concerned by those matters and shall set those out later within my judgment.

28. The father caused to be filed a notice of child abuse or family violence in the proceedings.  The father alleges within the notice at paragraph 6 that Ms Katac slaps both children across the face as disciplinary acts.  Frequently, Ms Katac pulled Z’s hair and smacked the head against a brick wall.  Ms Katac punched Y to his body and arms and slapped to his face.  Ms Katac strikes children with objects including wooden spoons.

29. Following interviews conducted on 30 March 2012 by the family consultant a memorandum was prepared by the family consultant, Ms F.  That family consultant’s report, dated 30 March 2012, was admitted into evidence and forms exhibit A of the proceedings.  Contained within the report under various headings are matters the family consultant considers are relevant.  The family consultant states that there are cross-allegations of family violence and this will need to be explored should a family report be ordered.  The father alleges the mother has physically and emotionally abused the children; that she has neglected them.  The mother refutes these allegations. A provisional AVO was made in Perth at the time the father retained the children in his care.  However, it appears the children were never interviewed in relation to the allegations and the AVO has since been dismissed.

30. The father raises concerns about the mother’s current mental health at this time and whether any time with the children should be supervised.  The family consultant spoke to the mother in regards to the concerns and it is her opinion that supervision is not required.  However, it is suggested that both the mother and children should seek counselling from the mother’s current psychologist.  She has been attending the (omitted) Clinic.  The family consultant writes there are cross-allegations with respect to drug and alcohol use and the father has raised concerns with regard to the mother’s parenting ability.

1. The family consultant writes that the father has had minimal contact with the children following separation until about 2009.  The mother reports she is willing to undertake any parenting course that may be recommended to her by the court and the family consultant suggests the mother may find the 1-2-3 Magic course or the Triple P Parenting Program useful.  The mother has raised with the family consultant concerns that the father’s partner Ms L, who is his cousin, has only recently had her three children returned to her care after many years.  This may need to be examined in the family report.  It may be useful to link the files to the father’s file as the father has indicated that he was interviewed in the step-mother’s family law matter.

2. The family consultant wrote that the children were interviewed and expressed a wish to live in Western Australia with their father.  The boy, Y, feels particularly strong about this as he feels that he has not spent enough time with the father who he loves very much.  The child, Z, was less sure as to whether she would miss her mother and indicated she would like to see her mother soon.  An observation session was carried out and both children responded positively to their mother.  Both kissed and hugged her although Y then laid back down on the couch and put his earphones in to listen to music so not to have to talk to his mother.  Z was happy to see her again and was affectionate towards her.  During the course of the children’s interviews it was revealed that the children are being encouraged to refer to their stepmother as “mum”.

3. It was the family consultant’s view that may be useful to make an order to ensure that no other person other than the children’s own mother or father is allowed to be called “mum” or “dad”.  Both children identified it would be hurtful to their mother if she was to be aware that they were calling their stepmother by that name and it was suggested that they chose another name for her or call her by her first name.

4. In proceedings before this Court the Court finds it useful to order parties to attend counselling interviews that are reportable and take place pursuant to section 11F of the Family Law Act. The court does note that in circumstances where it hopes and understands that the matters that are disclosed within an interview are then included in a report and then provided to the court. Having read the family consultant’s memorandum to the court prepared by family consultant, Ms F, I considered it necessary to call upon her to answer questions as I considered the report did not go far enough as to canvass any of the allegations made by the father that were suggested had been made by the children to him.

5. On 30 March 2012, Ms F was called to give evidence.  During the course of the evidence Ms F stated,

   “Y, said that his mother used to hit him when she was annoyed with him.  I asked him to give a specific example and he said that he recalled a time when he had a friend come over to have a stay-over with him and I think him and his friend were doing something that the mother didn’t like and he said something to his sister which was derogatory and his mother defended his sister and said, ‘Don’t talk about your sister like that’.  He called her a name and he said that his mum then proceeded to hit him in front of his friend.  I think he said he – she hit him on his arm and she hit him about the head.”

6. Ms F was then asked a question as to whether the hit was with a closed fist, open hand or was it with an object.  Ms F then answered,

   “He said she just hit him with her hand.  I said, ‘Did it leave any bruises or marks?’ and he said, ‘No.’ I said, ‘Well, what did you do?  Did you tell anybody else?’ and he said no, he hadn’t told anybody else.  He hadn’t told anyone at school.  He hadn’t told anybody else.”

7. Ms F was then asked by myself whether she discussed with Y any issues relating to the children being neglected.  Ms F then stated,

   “Yes, we did that.  He said that his mum has to go off to work early.  She works fulltime and that the children are expected to get themselves up and to school and to get breakfast.  He said that he is sick and tired of being responsible for his sister and his mother always asks him to clean up and do things so we discussed whether that was a reasonable expectation on the part of the mother or not.” 

8. I then asked a question of the family consultant,

   “Did Y disclose to you the time at which the mother leaves to go to work?”  “No.  I think he said 6 o’clock but I can’t remember for sure.”  I stated, “Would that be 6 am in the morning?”  The family consultant stated, “Yes.” 

9. A further question was asked,

   “Did Y indicate whether or not he and his sister were awake at that hour?” 

10. The family consultant Ms F said,

11. “No, he didn’t say.”

12. I then asked,

13. “Was it your understanding from the interview as to who else may have been in the home at the time the mother left to go to work at possibly 6 am?”

14. The family consultant stated,

15. “The impression I got was that it was just him and his sister.”

16. A further question was asked,

    “Did Y indicate what other duties he may have performed for his sister or himself whilst in the mother’s absence?  For instance, did he discuss the making of lunches for school or the purchasing of lunch orders – things like that?”  The family consultant stated, “No, he didn’t.  When I asked his sister about the sort of jobs that they did, she said they were expected to tidy up and do the dishes and things like that.”  I said you said that was sick of looking after his sister.”  The family consultant said, “He did, yes.”

17. An opportunity was then afforded to the solicitor for the mother and the duty solicitor for the father to put questions to me and that I would consider putting those questions to the family consultant.  Ms Urach, the father’s solicitor, stated,

    “I have just been instructed that the father raised with the family consultant during the session counselling this morning some concerns in relation to the mother’s mental health and apparent attempted suicide last week, your Honour, and whether or not the family consultant questioned the mother in that regard.”

18. I then asked the following question,

19. “Ms F, did you ask the mother any questions about whether or not she had mental issues or, alternatively, had attempted suicide last weekend?” 

20. Ms F then answered, “Yes, that was explored and then that was followed up with a discussion with the father.” 

21. I then asked the family consultant,

22. “Ms F, can you tell the Court so that I am clear what the mother said when she was asked about her mental health and whether or not she had, in any form, attempted suicide last weekend.”  

23. The family consultant said,

24. “Okay.  What the mother told me was that she had been very stressed for the last four months and about a week ago she received a copy of her stepmother, that being the maternal grandfather’s wife’s affidavit, which she felt was not accurate.  She was very distressed by it.  She telephoned her father, who told her that he would be supporting his wife in that – this position.  She felt that she was without family and support because he was supporting his wife against her.  She said she then went out and had some dinner.  She drank a bottle of wine with her dinner.  She came home and in order to get to sleep, she took three Valium instead of one Valium, the Valium having been prescribed for her by her doctor because she couldn’t unwind and relax.”

25. I note that the version proffered by the mother within her affidavit varies slightly as to the version proffered by the family consultant with respect to the information the mother provided the family consultant with respect to the taking of Valium.  The reason for taking it, it is stated, “to unwind and relax”, and the volume of alcohol the mother drunk, in that it’s proposed by the family consultant the mother indicated she had drunk “a bottle of wine” with dinner.

26. The family consultant goes on and states,

27. “She said that her friend who was with her was worried about her, called the ambulance because she couldn’t wake her up.  She went to hospital.  They were very kind to her.  They explored what was happening.  They were reassured that she wasn’t intending to self-harm.  She assured them and she subsequently assured me that she had no intention of self-harming.  She continues to receive counselling from her psychologist and she has also had follow-up from the hospital to make sure that she has no further mental health issues.  My assessment of her was that she was reacting to stress.  I don’t feel there are any particular risk of her self-harming at this particular time, and I did discuss this in detail with the father, setting it out as I have set it out now.” 

28. I am concerned by the manner in which the evidence in this matter has unfolded.  The family consultant could have easily included matters relating to the children being left on their own from 6 am in the morning in her memorandum the mother’s taking of Valium, drinking of wine, resulting in her ending up in hospital, and the child Y’s disclosure that the mother had hit him about the head.  The family consultant, for reasons not known to this Court, chose instead not to include those matters and those matters and issues only came out in evidence as a result of the court having asked the family consultant a series of questions.

29. Tendered during the course of the proceedings were the following documents, which I have read and considered.  COPS notes produced on subpoena to the New South Wales Police Service, particularly for the dates 10 February 2003 relating to an incident when the police had a discussion with the mother following a verbal argument.  Those notes indicated the mother did not wish any further action taken, as it was a verbal argument between herself and her husband. A COPS entry of 16 February 2003 in which the police state on the evening of the 16 February 2003, the victim and the person of interest consumed a large amount of alcohol in the company of other persons of interest and the person of interest’s younger brother. 

30. About 11 pm, the victim and the person of interest became involved in a verbal argument over their previous sexual partners.  The person of interest then began pointing at the victim in her face area.  He was also twisting her hands when she pointed at him.  The victim then went to bed.  The person of interest followed her and began to tip beer over her face.  The victim then called the police.  The police attended and spoke to the person of interest and the victim.  The victim stated she called police just to scare the victim.  The victim also stated they have arguments when they both consume alcohol.  The victim did not wish for an AVO, stated she had no fears.

31. A further COPS entry of 11 November 2002 relating to attendance upon the parties’ home by the police which the police were informed that a verbal argument had occurred at this location regarding the mother and over the staying of the family members that had arrived from Queensland.  The person of interest, victim 1, and person of interest, victim 2, had been drinking alcohol beverages this afternoon. I note that on two of the events, both parties had been drinking what appears to be to excess. 

32. I have read and considered copies of notes produced by the Queensland Police, particularly a note dated 23 September 2004 that states,

    “Police attended after sister of both rang and stated couple was having verbal argument that was getting quite heated.  Ms Katac, who stated that Mr Naylor had been out all night with his girlfriend and had brought her home.  Thus due to this an argument has ensued.  Mr Naylor stated Ms Katac knows of the girlfriend and also carries on sexual relations with her as well.  From info, it seems to be a love triangle that has gone bad.  Nil visible injuries.”

33. I do not know where that note particularly takes the Court. 

34. I have received into evidence a document which is a letter of Legal Aid Queensland dated 13 September 2011.  That document annexes to it or attaches to it a copy of orders made in the Federal Magistrates Court of Australia, Brisbane registry, by my sister, Demack FM.  I note that the orders provide that the mother, named as Ms L, have sole parental responsibility for the children – C, I, and A – for the children live with the mother.  There is a regime for the children to communicate with the father.  I have read and considered the orders contained within that exhibit.

35. I have read and considered exhibit F, being a series of drug tests undertaken by Ms L at what appear to be various pathology labs.  Two of the tests indicate there is no drugs detected, but there is one test that indicated there was nicotine and metabolites but on another test on 1 February 2006, there were no drugs of any type detected.  On a further test on 27 October 2010, again no drugs were detected.  I have received into evidence copies of documents from the Australian Government Child Support Agency with respect to the father’s payment of child support.  I have read and considered those documents.

36. I have received into evidence documents relating to the child Z’s vaccination that form being exhibit D in the proceedings.  Having read the vaccination records, it would appear that the child has only had her two, four, and six month childhood vaccinations and that if the child were to be vaccinated up to date for her age she would need to be vaccinated with a number of other vaccines for such things as diphtheria, polio, measles, mumps, rubella, and other vaccines.  I have received into evidence copies of the documents produced by the Western Australia Police that forms exhibit C in the proceedings, in particular a report relating to the father having committed some driving offences.  They appear to be failure to display L plates.  I have read and considered those documents.

37. The father seeks orders as contained in his response document with the addition of the following proposed orders that were sought by him by way of oral application that should the court grant the orders sought by the father then:

    1.That the children live with the father;

    2.They spend time with the mother for half of all gazetted school holidays, being one week of each of the three mid-year school holiday breaks and three weeks at Christmas, being the first three weeks in one year and the last three weeks in the second year on an alternating basis;

    3.That the children spend time with the mother, supervised by the mother’s father, Mr Katac, and the father’s wife, Ms D; 

    4.That the parties equally share the cost of the children’s airfares from Perth to Sydney, return;  and

    5.That should the Court fail to grant the father’s application then the children spend time with the father at the same time he had proposed that they spend time with the mother.

38. In response to the orders sought by the father, in circumstances where the children were not returned to the mother, the mother sought an increase in the time suggested by the father with the effect that the children would spend four weeks with the mother during the Christmas school holiday period, being the first four weeks in one year and the last four weeks in the following year on an alternating basis.  The mother further stated that she would accept supervision by her mother, who is the maternal grandmother.  The father then indicated he would accept the mother’s position with respect to four weeks in each of the Christmas school holiday periods and supervision being undertaken by the maternal grandmother.

39. During the course of the proceedings, Mr Haricharan, solicitor for the mother, made submissions lasting in excess of one hour.  Essentially, Mr Haricharan submits that the children were unlawfully retained,  that the Court should have grave concern or some concern as there has been no communication between the father and the mother since the date on which the were retained, and the that the retention of the children has prevented the mother communicating with the children.  Mr Haricharan asked the Court to draw adverse inference against the father in that he failed to attend upon the Magistrates’ Court in Western Australia for the purposes of prosecuting his violence order, sought by the police for the protection of the children.

40. Mr Haricharan asked that the Court draw the inference that the father did not prosecute the application as he knew he would be unsuccessful in it.  Mr Haricharan reviews the evidence, confirming that the children, since the date of separation up until their retention, being 15 December 2011, were in the primary care of the mother.  That the mother, at great expense, travelled to Western Australia to answer the violence order sought against her and then returned to the Court on 30 March 2012 to be interviewed for the purposes of these proceedings.

41. It was Mr Haricharan’s submissions that the violence order in Western Australia underpinned this Court’s failure to issue a recovery order on first instance. Mr Haricharan then made submissions with respect of those matters set out at section 60CC(2)(a) and (b), (3) and (4) – referring to the cases Starr & Duggan [2009] Fam CAFC115 at paragraphs 38 to 39, in which the Full Court including Boland, Thackray and Watts JJ stated that in relation to the legislation it need not be considered in any particular order. Mr Haricharan then considered the decision set out in the matter of Taylor & Barker (2007) FLC 93-345.

42. Mr Haricharan made submission on behalf of the mother that the children are not at risk of harm by the mother and that when considering all of the evidence the Court should indeed order that the children be returned to live with the mother.  Mr Haricharan provided what I can best describe as a comprehensive review of the evidence supporting the mother’s case.  Mr Naylor submitted ultimately that the children should remain living with him and that the children were at risk of harm or neglect if they stayed in the care of the mother.

43. The principles relating to parental responsibility, arrangements as to who a child lives with and spends time including parents, other people interested in the child’s welfare, are set out at section 64B of the Family Law Act. They arise in proceedings conducted pursuant to Part VII of the Family Law Act1975. 

44. Unless the court rebuts the statutory presumption at section 61DA in favour of equal shared parental responsibility, section 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. Parental responsibility is defined at section 61B as all of the duties, powers, responsibilities and authorities which, by law, parents have in relation to the child. The presumption in favour of equal shared parental responsibility relates to parental decision making and does not prescribe where or with whom a child should live.

45. Section 61DA(2) provides that the presumption does not apply where there exists reasonable grounds to believe that a parent or a person who lives with a parent of a child has engaged in family violence or child abuse. The presumption may also be rebutted where a court is satisfied it would not be in the child’s best interests in accordance with section 61DA subparagraph (4). In circumstances where the court determines the presumption does not apply or is rebutted, the court must decide the appropriate parental responsibility arrangements.

46. This is a matter in which the parties have agreed and there should be equal shared parental responsibility. Section 60B sets out the objectives of Part VII of the Act when deciding whether to make a particular parenting order, including an order concerning parental responsibility, section 60CA and section 65AA provide that the child’s best interests remain the paramount consideration. Section 60B sets out the objects of Part VII of the Act within which the relevant section 60CC factors are to be examined, weighed and measured.

1. Section 60B is set out and I read the following:

   6OB(1)The objects of this Part are to ensure that the best interests of the child are met by:

   (a)    ensuring the child is to have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)    protecting the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect and family violence; and

   (c)     ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)    ensuring that the parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   60B(2) The principles underlying these objects are that (except where it is or would otherwise be contrary to the child’s best interests):

   (a)    that the child have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and

   (b)    children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)     parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)    parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. I note that it is suggested in one of the affidavits that the child is of Torres Strait Islander background, and for this reason, note that:

   For the purposes of subparagraph (2)(e), an Aboriginal child or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Island culture includes the right:  (a) to maintain a connection with that culture;  (b) to have the support, opportunity and encouragement necessary to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views;  and to develop a positive appreciation of that culture.

3. I am satisfied in this matter that both parents will facilitate and encourage the children’s culture.  In deciding the arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in 60CC. 

4. Section 60CC contains two primary considerations. Section 60CC(2)(a) provides the court must consider the benefit of a child having a meaningful relationship with both of the child’s parents.

5. The second primary consideration is that at S.60CC(2)(b) and requires the court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. As far as they are relevant to this case the court must consider 13 additional considerations set out at section 60CC(3)(a) to (m). Paragraph (m) allows the court to take into account any other fact or circumstance the court thinks is relevant.

6. The legislative framework set out at S.60CC(2) and (3) allows the court to consider an infinite variety of the children’s circumstances. S.60CC(4) requires the court to also consider the extent to which each parent has fulfilled or failed to fulfil his or her parental responsibilities and has facilitated the other parent in fulfilling his or her parental responsibilities. Pursuant to S.60CG when determining appropriate orders, the court must to the extent possible and consistent with a child’s best interests, ensure the orders are consistent with any family violence order and did not expose a person to unacceptable risk of family violence and I note in these proceedings there is no current apprehended violence order.

7. If the court is satisfied the parents are to have equal shared parental responsibility, the court must pursuant to S.65DAA(5) consider the practicability, of the child spending equal, or, substantial and significant time with his or her parents and whether in doing so, it would be in the best interests of the child. The determination of equal time in my view needs no explanation. If equal time is not ordered, significant and substantial time must be considered.

8. The concept of significant and substantial time is defined at section 65DAA subparagraph (3) and (4). Subparagraph (3) of section 65DAA that provides:

   A child will be taken to spend significant and substantial time with a parent only if:

   (a)    the time the child spends with the parent includes both days that fall on weekends and holidays; and days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent that allows the parent to be involved in the child’s daily routine; and occasions and events that are of particular significance to the child; and the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

9. Where neither concept delivers an outcome that promotes a child’s best interests, living and spending time arrangements are to be determined in accordance with the child’s best interests see the case of Goode & Goode (2006) FLC 93-286. In consequence of section 60CA the court shall determine the weight to be given to the various matters, be they primary or additional considerations or considerations arising from a particular issue in a case, but not specifically referred to in the Act.

10. Ultimately, the weight attached to each factor is a matter of discretion. 

11. On an interim basis, I am not able to make any finding as to whether or not the presumption that is provided for at section 61DA should or should not be rebutted, and thus I make no order as to the provision of parental responsibility to either parent in the proceedings. Accordingly I do not look at those matters set out at S.65DAA. I note, however, that section 65DAA subparagraph (5)(a) requires the Court to look at the proximity that is now far apart the parents live from each other as a step in determining whether or not it is reasonably practicable for the children to spend equal time with the parents, significant and substantial time. I do make a finding that the parties live such a significant distance apart that equal time or significant and substantial time could not be practically achieved in this matter.

12. I turn to section 60CC(3), being the additional considerations. S.60CC3(a) I must consider any views expressed by the child and any factors such as the child’s maturity or level of understanding the Court thinks are relevant to the weight it should give to the child’s views. I note that the children, as disclosed in the family consultant’s report, particularly the eldest child Y, indicates strongly that he desires to remain living with his father.

13. S.60CC3(b) I must consider the nature of the relationship of each of the children with each of the child’s parents or any other person, including any grandparent or other relative of the child.  I note that until the children lived with the father for the purposes of the school holidays, the children were in the primary care of the mother.  There is some disagreement as to the nature of the relationship between the children and the parents.  It is the mother’s evidence that the father has had a limited involvement in the children’s lives.  The father argues that the children are at risk of abuse, have been neglected and abused whilst in the mother’s care.  It is difficult to determine in this interim application the nature of the relationship of the children with each parent.

14. S.60CC3(c) I must consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent.  It is difficult to make any finding as to the parties’ ultimate willingness to encourage and facilitate a close and continuing relationship.  I note both parties, in their affidavits, and certainly from their submissions, indicate that they will do the same.  However, I am not in any position at this time to make any final finding as to the willingness of each party or ability of them to facilitate and encourage a close and continuing relationship.

15. S.60CC3(d) I must consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either his or her parents, any other child or persons, including any grandparent or other relative of the child with whom she has been living.  The orders sought by the mother in these proceedings seek that the children be returned to live with her and, in effect, maintain what was the status quo up until December last year.  The father seeks orders that the children remain living with him.

16. On the father’s evidence, the effect of the change in the child’s circumstances is one where the children will be well settled, well cared for and attend school, in circumstances where there will be people at home when they wake up in the morning and people at home when they get home in the afternoon.  The mother deposes in her evidence that, through difficulties relating to her care of the children as a single mother, she has not been able to care for the children early in the morning or in the afternoon, and further, that she will do whatever is necessary, including quitting her employment, to change her circumstances.  She maintains that she has a good relationship with the children.  I do note that the mother is estranged from her stepmother, who it appears did have a relationship with the children for some period.

17. S.60CC3(e) I must look at the practical difficulties and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s rights and maintain personal relations and direct contact with both parents on a regular basis.  There are practical difficulties of these children maintaining regular contact with both parties in circumstances where both parties reside on opposite sides of Australia:  the father located on the west coast of Australia, in Perth, and the mother located on the East Coast in New South Wales Central Coast, some one and a half hours drive north of Sydney.

18. There are practical difficulties of either parent spending time with the children, whether the children live with the father or live with the mother.  There is certainly the expense of the children spending time.  I note that the father indicated that he is prepared to pay half the costs of the travel in response to that suggestion by the mother and other suggestions.  The mother did not suggest that she was unable to pay half the costs of the travel.  I note the mother currently works in a job and earns income, on her evidence, of approximately $69,000 per year.  I do not consider that the expense is so great that the children would not be able to fly between Sydney and Perth.

19. S.60CC3(f) I must consider the capacity of each of the children’s parents and any other person, including any grandparent or other relative of the child.  It was not strongly submitted by the solicitor for the mother that the father lacked capacity to care for the children.  It was not submitted by the solicitor for the mother that the children would be subject to or exposed to physical, psychological harm, abuse, neglect or family violence whilst in the father’s care.

20. There are, however, some issues raised in this matter that cause me concern with respect to the mother’s capacity.  The first I note is that the mother in recent times has been admitted to hospital in circumstances that only became apparent following the giving of evidence by the family consultant in this matter and the mother then subsequently filing an affidavit in the proceedings.  The mother would have been in a position to put that evidence before the Court in a number of previous affidavits, but chose not to do so.

21. S.60CC3(g) & (h) I am required to consider the maturity, sex, lifestyle and background, including lifestyle, culture, traditions of the children and either of the child’s parents, and any other characteristics of the child that the Court considers are relevant.  I note that both parents are of Maori background.  I understand that the children are also of Torres Strait Islander background.  I am satisfied that both parents will ensure that the children are exposed to their culture and have a right to know and enjoy their culture.

22. S.60CC3(i) I am asked to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents.  This is a matter where I am significantly concerned as to the responsibilities of parenthood demonstrated by the mother in that the mother has at least from late 2009 left the two children, on the mother’s evidence, at 6.30 in the morning;  on the evidence proffered by the family consultant, having spoken with the child, at 6 am in the morning;  and then not returned to the children until, on the mother’s evidence, 5.30 pm;  on the evidence proffered by the family consultant, having spoken with the child Y, 6 pm at night.

23. It is apparent that the mother has left the child Y since he had been approximately nine years of age, being the responsible carer for the youngest child Z, who in 2009 would have been somewhere between six and seven years of age.  I am concerned that this does not demonstrate a reasonable responsibility towards parenthood. 

24. S.60CC3(j) I am asked to consider any family violence involving the child or a member of the child’s family.  This is a matter in which there are cross‑allegations of family violence.  Borne out in the subpoenaed material tendered in this Court is evidence that both parties have drunk to excess and that the police have on occasions attended upon the parties.  On two of those occasions the police left when it became apparent the parties had been drinking to excess.  I am not in any position to make any finding as to the history of family violence between the parties in circumstances where there are allegations of family violence levelled against one another on both sides.

25. S.60CC3(k) I am asked to consider any family violence order that applies to the child or a member of the child’s family, if the order is final or the making of the order was concessive by a person.  I note there was a previous order issued by a Magistrates’ Court in Western Australia.  That order has now been discharged, and accordingly, I pay that factor little consideration, and none.

26. S.60CC3(l) I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child. These are interim orders that are being made, they are not final orders. No doubt, in the fullness of time, a family report will be ordered. There will be a full investigation as to the circumstances of the history of the relationship, the care of the children, and further, there will be investigation as to the children’s attachment to both parents. There will be an investigation as to what is considered to be in the best interests of the children in a family report on a final basis, having regard to those matters set out at section 60CC(2)(a) and (b), (3) and (4). The orders that I make will ultimately be likely to lead to the institution of further proceedings by way of a final hearing.

27. S.60CC(3)(m) I am entitled to consider any other fact or circumstances as the Court thinks is relevant. I choose not to consider any further factors that I have not outlined previously.

28. S.60CC(4) I am required to consider the extent to which each of the children’s parents has fulfilled or failed to fulfil their responsibilities as a parent, in particular, the extent to which each of the children has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, to communicate with the child.

29. There is a history in this matter where, in the mother’s evidence, the father has failed to spend time with the children for a significant period of time.  Certainly there is criticism levelled at the father in the family consultant’s memorandum to Court.  The father has come back into the children’s life.  The father has retained the children and orders are now sought that the children remain living with father.  I am asked to consider the extent to which each of the child’s parents has facilitated or failed to facilitate the other parent participating in making decisions about major long-term issues in relation to the child, spending time with the child, and communicating with the child. 

30. I note that since the date on which the children came into the father’s care there is some criticism – in fact, significant criticism – levelled at the father in that the father has failed to, on the mother’s versions, facilitate the children communicating with the mother and failed to allow the children to spend time with the mother, certainly as recently as last weekend following the family consultant having interviewed the children. 

31. I turn to those matters set out at section 60CC(2)(a) and (b) being the primary considerations. I must consider the benefit of the child having a meaningful relationship with both parents. It is always difficult to consider how a child has a meaningful relationship with both parents when they live in different capital cities or a significant distance away from each other. These children certainly have had a strong relationship with the mother. There is a benefit in these children continuing a relationship with the mother. There is a benefit in the children having a meaningful relationship with the father. I am pursuant to S.60CC2(b) required to consider the need to protect the children from physical, psychological harm, from being subject to or exposed to abuse, neglect, or family violence.

32. Whilst it is difficult to make findings in an interim hearing as to fact, I am still required to consider the evidence that is placed before me.  Having weighed up the evidence in the matter disclosed by the family consultant during the course of her evidence, particularly the evidence of the child, Y, having disclosed:  the mother had hit him on the arm and hit him about the head;  that the mother goes off to work early;  and that the children are expected to get themselves up, go to school, and get breakfast;  that Y is sick and tired of being responsible for his sister;  and the evidence disclosed by the family consultant that Y has stated his mother leaves at approximately 6 am in the morning and comes home from work at 6 pm at night.

33. That the mother accepts in her evidence that she has left the children without supervision;  that the family consultant gave evidence that during the course of the interview with the mother, the mother indicated she had been very stressed for the last four months, and about a week ago she had received a copy of the stepmother’s affidavit, which she had felt was not accurate;  that she was distressed by it, telephoned her father, and her father told her that he would be supporting his wife’s position;  that the mother thereafter drunk a bottle of wine, according to the family consultant, with her dinner;  she came home and in order to get to sleep took three Valium rather than one;  that, on the evidence of the family consultant, an ambulance was called because the mother could not be woken and was conveyed to hospital.

34. Noting with concern the evidence set out in the letter prepared by Ms D, the maternal stepgrandmother, witnessed in front of a Justice of the Peace to the following effect: 

    1.that Y has stated to the maternal step-grandmother that the mother hits him when she is drunk; 

    2.that Y has asked the maternal step-grandmother to ask the mother to stop hitting him; 

    3.that the children have told the maternal step-grandmother that the mother has left the children on their own, going out; 

    4.that the child Z has told the maternal grandmother to come around and get her, as the mother is “getting attitude” and that the maternal step grandmother states this means the mother is drunk and getting argumentative; 

    5.that the mother has caused the children to become scared when the mother is drunk and wants to fight;

    6.that Y was quiet and not happy whilst in the presence of the mother and the maternal step grandmother and that the mother said to the maternal step grandmother that she woke up and things had been stolen from the house, including a camera  and that following the mother saying this, Y then said to the mother in the presence of maternal step grandmother, “If you didn’t bring random men home, we wouldn’t get things stolen,” and that after Y said this his mother told him to shut up;  

    7.that the maternal step grandmother would ring the children before school to see how they were, as they were always on their own; 

    8.that Z had disclosed on an occasion that she had not had breakfast, as Y had not made breakfast for her;

    9.that the maternal step-grandmother had telephoned the mother’s home at approximately 9.30 pm and that Z advised the maternal step grandmother that the mother was at the pub with a friend and that Y was looking after Z and one of Z’s friends, (omitted).

    10.That in October 2011, Z telephoned the maternal step grandmother at 1.30 am in the morning, stating she was scared as the mother was not there as the mother was at the (omitted) Pub and that Y was not in the house as he was staying over with a friend and that Z had kept calling the mother on the phone to come home and the mother said on a number of occasions, “I love you, bye,” and then hung up.  The maternal stepmother spoke to Z on the phone and told her to telephone her mother and tell her to come home and if the mother had not returned home within 10 minutes, the maternal step grandmother and maternal grandfather would go and get Z.

1. The maternal step grandmother states that she stayed on the phone until the mother arrived home, that the maternal step-grandmother rang Z at 7.30 am the following day and that Z stated to her that the mother did not come home because she was with a boy. 

2. The maternal step grandmother stated in her letter that Z disclosed to her that on another occasion, in the earlier hours of the morning, she was unable to telephone the maternal stepgrandmother as there was no landline in the mother’s home, that the mother was not home, that Z did not have a mobile phone so she went next door and stayed with the next-door neighbour.

3. The maternal grandmother sets out in her letter that while she would like the children to be living back in (omitted) so that she could see them, she is concerned about their welfare, and is at ease knowing the children are in a stable home, being cared for by the father.  I am unable to make any finding as to the accuracy of the accounts contained by the maternal stepgrandmother within her written statement.  I am, however, critically concerned by the matters set out within that letter.  I accept that it would have been difficult for Ms D to have provided the evidence she has provided as it would be obvious to her that to provide such evidence was likely to cause an irreconcilable rift between herself and the maternal grandfather on one side and the mother on the other.  In order to ensure the children are protected from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence I must find in favour of the orders sought by the father.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of Myers FM

Date:  9 May 2012